By Hammad Cheema
Imran Khan, Chairman Pakistan Tehreek-i-Insaf (PTI), has expressed his disgust and anger over the way the whole Dr Aafia Siddiqui case has ended in what is clearly a travesty of justice. He has demanded three things from the State of Pakistan and the USA:
First: the Pakistani people have a right to know how Dr Aafia Siddiqui, with three minor children, landed up in Bagram Base. He demanded that the Pakistan government needs to answer this clearly as does the US. Did the Pakistani authorities covertly hand over Dr Siddiqui with her young children to the Americans? Or did the Americans kidnap her in Pakistan and successfully take her out into Afghanistan? What has been the fate of her children, since two of them are still missing?
How could a frail woman manage to attack US soldiers who surrounded her? Did she suddenly acquire superwoman or bionic abilities?
Second: Why has the Pakistan government not taken proper action to ensure her return to Pakistan? Are they not aware of the fact that apart from the injustice and abuse of a Pakistani woman, the injustice meted out to Dr Aafia is going to add to the difficulties of the Pakistani military’s fight in the tribal belt as well as increasing anti-Americanism and extremism? For Pakistan this will create more space for militancy.
Just as the Lal Masjid episode was a watershed for a qualitative change in the rising tide of militancy and extremism, so the Dr Aafia sentencing will become another watershed in this direction of creating more space for extremism and militancy.
Three: Who aided and abetted the Americans in Pakistan? The Pakistan government must not only expose those who aided and abetted the kidnapping of Dr Aafia, but must also mete out exemplary punishment to them. In 2003 when Imran Khan contacted Dr Aafia’s mother in order to give a statement in Aafia’s support, her mother was terrified and told Imran that she had been warned that if any such statements were made, Dr Aafia would be killed.
It is a national shame that the state of Pakistan, instead of protecting its citizens, has been aiding and abetting in their disappearances, their torture and their abuse. It is time to put an end to all this lest the nation take things into their own hands.
Musharraf was denied immunity in CJP restoration case
By Ansar Abbasi
ISLAMABAD: The critical issue whether the president enjoys immunity under Article 248 of the Constitution was categorically and specifically decided by the Supreme Court and it was denied to former president Pervez Musharraf in the case of restoration of the then-deposed chief justice Iftikhar Mohammad Chaudhry.
While the short order in the case given on July 20, 2007, by a 13-member bench, headed by Justice Khalilur Rehman Ramday, restored the chief justice, in its detailed judgment of the same case, given just 35 days ago, no room for any ambiguity has been left.
The detailed judgment, which did not receive much legal or media attention, addressed the issue, which Prime Minister Yousuf Raza Gilani has now referred back to the Supreme Court in his speeches in the National Assembly, and gave reasons and past references to deny immunity to a sitting president, even in criminal cases as provided for in Article 248 of the Constitution.
The detailed judgment issued on Dec 24 clearly states: “…allegations of mala fide had been levelled against the person of the president by no less a person than the chief justice, no exception could be taken to implead the president as a respondent…”
Responding to objections raised in 2007 by the then-government (of Gen Musharraf), over impleading the then-president, the detailed judgment also refers to several previous judgments on this specific issue of Article 248 and cites examples where such immunities were not accepted.
The Ramday judgment refers to mala fide actions of Gen Musharraf and ruled in Para 107: “As would appear from the averments made in this petition, some of which have even been noticed in the earlier part of this judgment, the mainstay of the case of the petitioner, the chief justice of Pakistan, is that the entire exercise in question had been commenced for collateral purposes and suffered from mala fides which was sought to be established, inter alia, through the chief justice of Pakistan being summoned by the president to the Army House/President’s Camp Office; detention of the chief justice at the said office for about five hours; attempts made to secure the resignation of the chief justice under duress and through coercion; the alleged illegal detention of the wife and the children of the chief justice in their house and the alleged unconstitutional removal of the chief justice from his office and appointment of acting chief justice of Pakistan. Since such serious allegations of mala fide had been levelled against the person of the president by no less a person than the chief justice of Pakistan, no exception could be taken to implead the president as a respondent in this petition, which was in fact imperative in view of the above-mentioned precedent cases.”
Interestingly, this judgment says the president can be impleaded for his actions of illegal detention of the chief justice, his wife and children, etc. All these actions are of criminal nature, which a sitting president ordered, but the Supreme Court did not give him immunity under Article 248(2), which says no criminal proceedings can be initiated or continued against a sitting president. The Constitution does not give immunity to president or any other public office holder in civil matters.
Referring to the objection raised that Gen Pervez Musharraf, the president of Pakistan, had been impleaded in the said petition as one of the respondents, which was seen by the then government as against the provisions of Article 248(1) of the Constitution, the judgment reproduced the said Article, which reads as: “The president, a governor, the prime minister, a federal minister, a minister of state, the chief minister and a provincial minister shall not be answerable to any court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions: Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a province.”
Many past judgments were also quoted by the Ramday judgment of Dec 24, 2009. It said that such an immunity clause had been examined by the Privy Council in HB Gills case (AIR 1948 Privy Council 148) and the reaction of the Privy Council to such-like protective provisions was as under: “Their Lordships, while admitting the cogency of the argument that in the circumstances prevailing in India a large measure of protection from harassing proceedings may be necessary for public officials cannot accede to the view that the relevant words have the scope that has in some cases been given to them. A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus, a judge neither acts nor purports to act as a judge in receiving a bribe, though the judgment which he delivers may be such an act: nor does a government medical officer acts or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office.”
The judgment added: “In our jurisdiction the pleaded Article 248 came up for interpretation in Chaudhry Zahur Elahi’s case (PLD 1975 SC 383). The scope and the operational area of the said provision was so stated by this court: “…the immunity provisions must, in accordance with the accepted principles of interpretation, be construed strictly and unless persons claiming the immunity come strictly within the terms of the provisions granting the immunity, the immunity cannot be extended. The immunity is in the nature of an exception to the general rule that no one is above the law.”
The matter was further explained in these words: “Hence, since neither the Constitution nor any law can possibly authorise him to commit a criminal act or do anything which is contrary to law, the immunity cannot extend to illegal or un-constitutional acts.”
This court, the judgment said, when confronted again with the protection provisions of Article 248 in Amanullah Khan’s Case (PLD 1990 SC 1092) reiterated that the said provisions were required to be strictly construed and added in para 56 that: “If mala fide of fact was pleaded by a party then it had to decide for itself whether on the material with it, the minister has to be impleaded in spite of the protecting provisions of the Constitution; because if his act does not fall within the purview of the provision so interpreted, then he can be impleaded as a party and all objections to such impleadment dealt with in the proceedings. In the absence of the party, no finding with regard to mala fide of fact (as distinguished from mala fide of law) can be recorded, should be recorded and should have been recorded. Recourse to the principles of natural justice to overcome the prohibition contained in Article 248 of the Constitution is not permissible.”
“It was further declared: “Protection under Article 248 of the Constitution is not available to the designated functionaries if their actions suffer from mala fide of fact where the allegation against the protected functionaries is one of mala fide of fact, they have to be personally impleaded as a party to the proceedings;”
“The views of Nasim Hassan Shah J in the same case are also enlightening for the resolution of the issue in question. His views were: “Now the immunity to a minister extends only to the exercise of powers and performance of functions of his office or for any act done or purported to be done in the exercise of those powers and performance of those functions. A minister can be said to be acting in exercise of the powers and functions of his office, if his acts are such which not only lie within the scope of the powers and functions conferred on him by law but are performed bona fide and for carrying into effect the intention and purposes of the statute under which, he is acting. If on the other hand his acts are performed with mala fide intent or for a colourable purpose, such acts will not be deemed to have been performed in the lawful exercise of the powers and functions vested in him and will not, therefore, be covered by the immunity. Accordingly, where it transpires that a minister has acted illegally and abused his discretion and the illegality committed was not in the bona fide exercise of his powers and functions but on account of mala fides the immunity contained in Article 248(1) would not extend to protect such an act.”
Similar views were expressed by this court in Nawabzada Muhammad Umar Khan’s Case (1992 SCMR 2450) which were as under: “Secondly, where allegations of mala fide of fact are involved or alleged, it is necessary that the parties against whom such mala fide of fact is alleged must be impleaded as a party so that it has occasion to meet the allegation. This is notwithstanding the constitutional protection enjoyed by such functionaries under Article 248 of the Constitution vide Amanullah Khan and others Vs the Federal Government of Pakistan through secretary, Ministry of Finance, Islamabad, and others (PLD 1990 SC 1092).”
While there are such specific rulings and judgments given by the Supreme Court itself, the latest being on December 24, 2009, a new case filed by Khalid Khwaja is again before the Supreme Court to give another judgment on the subject.
The prime minister has promised in Parliament that he would act if the SC clarified the ambiguity, although after reading the Dec 24, 2009, judgment of Justice Ramday, there is no ambiguity left, an expert said, lamenting that perhaps no one in the government had bothered to go through this detailed judgment that has squarely discussed the issue of President’s immunity.
I think Jinnah is the founder of Pakistan not any Bhutto–>Can someone tell this to PPPP “leadership”?
This is ridiculous and unacceptable for any sensible Pakistani?
I think Jinnah is the founder of Pakistan not any Bhutto.
Can someone tell this to PPPP “leadership”?
It’s a real shame that in front of the whole world PPPP leadership is showing that they have forgotten the founder of the nation and the country has become a family and political party affair.
United4Justice:Thank you Aitzaz Ahsan for listening to the civil society and lawyers who has fought a long battle for the cause of justice in Pakistan and taking your resignation back.
We need you as our leader in this cause.
Incidents like Sher Afgan a minor ones but the cause is much bigger than the Afgan type politicians who are part of the team which committed crimes like 12 May,killings of innocent people in wana and balauchistan,violating the constitution,betraying the country,illegan abductions,torture on the civil society,lawyers and media and the list is too big to mention SO WE NEED YOU TO BE THERE FOR US AND THIS COUNTRY.
Presidency behind attack on Afgan: Aitzaz
Asad Muhammad Khan
ISLAMABAD: SCBA President Chaudhry Aitzaz Ahsan while announcing to withdraw his resignation has said the Aiwan-e-Sadr is hatching conspiracy to divide and malign lawyers’ movement and manhandling of Dr Sher Afgan is a part of this plot.
He was addressing a press conference at his residence here Wednesday. He said the legal fraternity will not apologise over Afgan’s incident as the lawyers tried to secure and guard Dr Sher Afgan Niazi. It is the interim government of Punjab that should apologise. SCBA President Aitzaz Ahsan said that the non-violent movement of lawyers and civil society will continue. Aitzaz said that the nation could not recover from the trauma of May 12 and the violence has again hit Karachi. He said I ask where are the leaders of Muttahida Qaumi Movement? “They should come out and control the violence”, Aitzaz said. Aitzaz said that it is strange that no lawyer was involved in Arbab Ghulam Rahim’s case then why the lawyers were targeted at Karachi.
Replying to a question, Aitzaz Ahsan said that he will contest by-elections from constituency NA-55, if Pakistan People’s Party (PPP) issued him the ticket. He said that PPP and Asif Ali Zardari have taken bold steps but there is a hidden power that is intriguing against the democracy.
Online adds: Aitzaz said, “I think minus-one formula should be applied now and Pervez Musharraf is minus one in this formula. Country’s problems will remain unresolved unless President Musharraf quits. The force is working in the country which is out to sabotage the whole democratic process”, he underscored.
He said the character assassination campaign was started against the legal fraternity some time ago. It was being said that lawyers wanted clash, he added. “We accepted Bhurban accord despite the lawyers stance that 30 days were not needed to reinstate judges, Asif Zardari and Mian Nawaz Sharif, leaders of two major political parties signed this agreement and made the people its custodian. Soon after the signing of this accord, conspiracies started from Aiwan-e-Sadr. Proposal was given to constitute committee on it and they started talking about; package and two-thirds majority of parliament. But we made it clear two thirds majority was needed for President Musharraf rather than in judges’ case.
The conspiracies have not come to an end, he said adding release of deposed judges dealt a severe blow to Aiwan-e-Sadr. People rejected Musharraf on February 18 and slogans were raised in parliament against the president. Ministers took oath while wearing black bands, he maintained. Despite all this the presidency has not stopped from hatching conspiracies, he added.
Aitzaz Ahsan questioned if lawyers had attacked Dr Sher Afgan but who was behind manhandling of Dr Arbab Ghulam Rahim. About Sher Afgan incident he told “I came to know about Sher Afgan incident on Tuesday evening through media. I rushed there even at the risk of my life. But no government functionary turned up. Police did not stop the demonstrators despite my request. I tried to talk through megaphone from balcony. Only 40 per cent lawyers were found present there and the remaining were some other people. I appealed to lawyers to disperse and they did so. But the other people remained there.
He further said “I asked the police officers present over there to call in more contingent of police but it was not done so. I asked police officers to call police van and bring it close to door so that Sher Afgan could be pulled out from there. But police did not do so. I asked the police officers to remove a plain clothed man but they told he was a policeman. I knew he was not policeman and was some terrorist. When I brought out Sher Afgan then police disappeared. When I took Afgan inside van, we came to know driver of the van was not there. People in plain clothes were found involved in the acts of sabotage. My friends and I tried to rescue Dr Sher Afgan even at the risk of our lives. But all happened under a planned conspiracy. People in plain clothes subjected Dr Afgan to violence”.
Lawyers wanted to strengthen parliament, he held. An individual and his cronies were doing harm to the country, he alleged. Why Dr Afgan was taken to Model Town police station and later to the Governor’s House. These are the questions and plots, which need to be exposed. Nation will see Bhurban declaration is implemented in letter and spirit, he said, adding count down has been started. Lawyers’ movement is meant for peaceful objectives and it will continue unless these objectives are achieved, he declared.